Dave Anderson Greenidge v The Commissioner of Police

• Jurisdiction: Bermuda
• Judge: Hargun CJ
• Judgment Date: 25 November 2021
• Docket Number: CIVIL JURISDICTION 2018: No. 381
• Court: Supreme Court (Bermuda)

[2021] SC (Bda) 92 Civ

In The Supreme Court of Bermuda

Before:

Hon. Chief Justice Hargun

CIVIL JURISDICTION 2018: No. 381

Between:

Dave Anderson Greenidge

Applicant

and

The Commissioner of Police

Respondent

Representation:

Mr. Saul Froomkin QC for the Applicant

Mr. Allan Doughty and Ms. Safia Gardner of MJM Limited for the Respondent

Whether a decision of the Assistant Commissioner of Police that the Applicant did not qualify to participate in the promotion process for police officers is open to judicial review; whether there was the legitimate expectation that the applicant will be allowed to participate in the circumstances; whether the decision is otherwise Wednesbury irrational

Hargun CJ

1 This is another case arising out of the promotion process for promoting Police Officers in the Bermuda Police Service (“ the BPS”). In this case Detective Inspector Dave Anderson Greenidge (“ the Applicant”) complains that he was not allowed to participate in the 2018 promotion process (“ the Promotion Process”). The Applicant asserts that on 26 April 2018, he submitted an application for promotion for the rank of Chief Inspector during the process when applications for promotion for the rank were ongoing. However, on 4 May 2018, in response to his application, the Applicant received an email from Acting Commissioner Martin Weekes “ ACOP Weekes”) advising him that he was ineligible to participate in the process “since (he) did not meet the PDR requirements.”

2 The Applicant seeks an order of certiorari quashing the decision of ACOP Weekes and a declaration that the Applicant was eligible to participate in the promotion process and is entitled to damages. The grounds upon which this relief is sought are as follows:

• (1) That the Applicant had a legitimate expectation that his application for promotion to Chief Inspector would be properly considered by the Promotion Board.

• (2) That bearing in mind the Applicant's years of service, record of service and the fact that for 20 consecutive months he acted as head of the Criminal Investigation Unit as Acting Chief Inspector, he had reason to believe that he would be promoted to the rank of Chief Inspector.

• (3) That the Applicant was treated unfairly in that the alleged reason given for his ineligibility for promotion was inconsistently applied to other Applicants and had in the past been waived.

• (4) That the said decision was unreasonable and irrational.

• (5) That in refusing to consider the Applicant's promotion application, he was treated unfairly.

• (6) That in refusing to properly consider and process his application, the established regular practice regarding promotion was disregarded.

3 The Application is supported by three affidavits filed by the Applicant and an affidavit by Police Sergeant Michael Butcher (“ PS Butcher”) and Inspector Barry Richards. In response, the Respondent has filed three affidavits of ACOP Weekes, an affidavit by and an affidavit by the BPS, Human Resources Manager, Mr. Michael Trott (“ Mr. Trott”).

Background

4 In his third affidavit ACOP Weekes explains that the BPS Promotion Policy 1, is an ever-changing document and has been revised multiple times in his career. In recent years the Promotion Policy has been revised following consultation at all levels of the BPS, including the Bermuda Police Association (“ the BPA”). Following the completion of the last promotion process, feedback was sought and has formed the starting point for consultation of the revisions for the next promotion process.

5 ACOP Weekes states that a Promotion Process was run in 2012 and again in 2013. The 2013 Policy was radically different from the previous policies in that it provided for a very

strict drawn-out process designed to “filter out” as many candidates as possible in order to limit the number of formal interviews that took place. The process for each rank promotion had an application form which had multiple questions to answer as well as a career summary document to prepare. All candidates' applications were marked, and many were “ failed' on the answers that they gave to the questions. The applicant also had to submit completed Personal Development Review (“ PDR”) documents that were screened by the panel and where entries were not deemed strong enough the candidate was rejected. The idea was to only have 10 candidates at each rank progressed through to the interview stage. Following the conclusion of the 2012 and 2013 promotion processes, all applicants, along with the BPA, were invited to submit written feedback that would be considered in advance of the next promotion process

6 When it was suggested in 2017 that a revised process needed to be established, ACOP Weekes volunteered to take the lead. ACOP Weekes then took the written feedback from the 2012 and 2013 promotion processes and invited volunteers from across the Service to form a working group (“ Working Group”) to refine the policy and present a revised policy to the Commissioner of Police (“ the Commissioner”).

7 The membership of the Working Group was varied between police officers who held the rank of Constable to the rank of Chief Inspector. Representatives from the BPAwere also invited to join the Working Group. The feedback that was ultimately provided by the Working Group was that the 2012 and 2013 Promotion Processes were unduly timeconsuming and that many of candidates felt it unfair that their PDRs which have been signed off by the supervisors were found not to be strong enough for them to continue in the process. To that end the Working Group proposed that the Commissioner implement a new policy. The Commissioner directed that the new policy should be as “ inclusive” as possible and not designed to “ exclude' candidates as had been the case with the previous policy. To that end the Commissioner allowed the following changes:

“5. ELIGIBILITY REQUIREMENTS

5.9 Officers will not be eligible to participate in any extended promotion process if they received a failing grade in their PDR or have failed to complete a PDR during the preceding 2 years.”

• (1) Removal of the lengthy questions from the application form leaving only the requirement to complete all sections (and details of professional development undertaken by the candidate at their own volition).

• (2) Removal of the requirement for PDRs to be graded by the panel. The Commissioner declined to remove the PDR requirement completely but did agree to only require the applicant to attach the 2 completed PDRs for the last 2 years. The Commissioner agreed that the applicants would not be marked down on the contents, and they must just prove the compliance with the PDR Policy by completing one each year. This requirement is reflected in paragraph 5.9 of the current Promotion Policy:

8 The BPS policy in relation to the requirement for PDR is set out in a document headed Performance and Development, effective 1 April 2011 and as amended on 16 April 2012. The document states that it is the policy of the BPS that all officers will undergo annual performance and development reviews. It provides that the performance and development reviews for all officers will be conducted using the Development Performance Management System software in accordance with the procedures outlined in the document.

9 In his affidavit dated 10 September 2020 PS Butcher explains that it is the policy of the BPS that all officers will undergo annual performance and development reviews. A failure to complete a PDR is a disciplinary offence as it would be a breach of the Standards of Professional Behaviours, specifically Order and Instruction which states that police officers abide by police regulations, police codes of practice, service policies and lawful orders. A breach of the Standards of Professional Behaviour (not completing a PDR) is actionable under the Police Conduct Order 2016, and therefore the Commissioner has the authority to take action against officers failing to complete a PDR.

10 As noted earlier the Applicant applied on 26 April 2018 for promotion to the rank of Chief Inspector. In the covering memorandum to ACOP Weekes, the Applicant acknowledged that he had not complied with the requirements relating to completing PDRs within the relevant time and sought a “waiver” regarding this requirement. The memorandum stated:

“Sir,

I enclose a copy of my application for promotion, I am aware that one of the criteria for promotion is the requirement of two years of PDR,, that is for the period 2016–2017 and 2017–2018. I have completed both PDR's however; the 2016–2017 was completed outside of the deadline .

Although clearly the PDR is a recognized tool for gauge the performance of staff, it ought not to be the one factor in Performance Measurement, and not a condition precedent. I am aware that in the past, the 2 year PDR requirement has been waived and the applicants have been permitted to participate in the promotion process .

Accordingly I request such a waiver. Bearing in mind that I have been Acting Detective Chief Inspector, OIC of the Criminal Investigation Unit for the past 17 consecutive months and acted in that capacity for a combined total of 18 1/2 months out of the past 2 years, it would be unfair to exclude me from consideration for promotion merely on the basis of a single factor.”

11 In response ACOP Weekes confirmed that the Applicant had not met the PDR requirements as the audit of the PDR system indicated that (1) all of the entries in the Applicant's PDR for 2016/17 were entered on 6 April 2018 (the deadline being 30 March 2017); and (2) it appeared that none of the entries were verified within the prescribed time. ACOP Weekes sought further and better particulars in relation to the Applicant's allegation relating to past “waivers” relating to the PDR requirement. The email ended by ACOP Weekes stating that on the face of it, the Applicant's...